Phillips v. Ottey et al

Filing 67

MEMORANDUM AND ORDER DISMISSING Plaintiff's claim brought under Article 10 of the Maryland Declaration of Rights and DENYING 59 partial motion to dismiss, or, in the alternative, partial motion for summary judgment. Signed by Judge Deborah K. Chasanow on 1/4/2016. (sat, Chambers)

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND : ARTHUR PHILLIPS : v. : Civil Action No. DKC 14-0980 : DR. COLIN OTTEY, et al. : MEMORANDUM OPINION AND ORDER Defendants filed a partial motion to dismiss or for summary judgment, arguing solely that, as non-governmental actors, they are not subject to the First Amendment and thus Plaintiff’s § 1983 retaliation claim fails.1 Generally, of course, a prison contractor can be liable under 42 U.S.C. § 1983, as acting under color of state law. West v. Adkins, 487 U.S. 42, 54 (1988). Defendants cite no authority for treating First Amendment claims differently than Eighth Amendment claims. been discussed without any such distinction. Similar claims have See, e.g., Burton v. Lynch, 664 F.Supp.2d 349, 366-68 (S.D.N.Y. 2009), Randle v. Alexander, 960 F.Supp.2d 457, 482 (S.D.N.Y. 2013). their argument to the contrary fails. some of Defendants (all except In a reply memorandum, argue that respondeat superior cannot provide a basis for liability. They 1 the Accordingly, Mr. Flury) The same analysis would apply to the parallel argument under Article 19 of the Maryland Declaration of Rights. On the other hand, Plaintiff concedes that his claim under Article 10 should be dismissed. may well be correct, but the court declines to address an issue raised for the first time in a reply memorandum. Accordingly, it is this 4th day of January, 2016, by the United States District Court for the District of Maryland ORDERED that: 1. Maryland Plaintiff’s claim Declaration of brought Rights under BE, and Article the same 10 of hereby the IS DISMISSED; 2. Defendants’ partial motion to dismiss Plaintiff’s amended complaint, or, in the alternative, partial motion for summary judgment BE, and the same hereby IS, DENIED; and 3. The clerk will transmit copies of this Memorandum Opinion and Order to counsel for the parties. /s/ DEBORAH K. CHASANOW United States District Judge 2

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